Burglary: It takes more than a fence

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Burglary means entering a building with the intent to commit a theft or some other felony. But what’s a building?

State law lists a few examples, like a house, an apartment, a room, a store and a barn. It’s also a burglary to break into a car, a tent, a boat, a plane, or a mine with crime on your mind. But jumping over or cutting your way through a fence that surrounds an open yard doesn’t make you a burglar, according to a state appeals court.

Although the California Supreme Court “has defined ‘building’ broadly for purposes of burglary,” the Fifth District Court of Appeal in Fresno said Friday, it’s never included a fenced yard. That’s been true at least since 1867, when the state’s high court defined a “house,” the term then used in the burglary law, as “any structure which has walls on all sides and is covered by a roof.”

The ruling sets a precedent that could make a big difference in some cases, because burglary is punishable by up to six years in prison When the building is inhabited, the crime is a “strike” under California’s three-strikes law, which carries a prison sentence of 25 years to life for a third felony conviction. But the court said it would trim only eight months off Pablo Chavez’s sentence of nine years and eight months for a pair of criminal episodes in Kings County.

Chavez was arrested outside an auto wrecking yard in Lemoore in May 2010, along with a friend who was seen jumping over the fence from inside the yard. Police also found three cans filled with gasoline that had apparently been siphoned from a car in the yard. Two months later, while Chavez was out on bail, he was accused of stealing a motorcycle from a garage near Hanford. A jury found him guilty of burglary and other crimes in both incidents.

In overturning his conviction for burglarizing the auto yard, the appeals court said past rulings have defined many structures as buildings that can be burglarized — like an enclosed phone booth, or a carport that was open on two sides but was considered part of the house to which it was attached. But the auto wrecking yard wasn’t attached to a building, the court said, and it doesn’t fit the Webster’s Dictionary definition of a building, which is “anything that is built with walls and a roof.”

After telling jurors that there was a “thin blue line between society and those that would destroy it, the maggots, the leeches,” the prosecutor said Chavez and a codefendant in the motorcycle theft were like “zombies … the walking dead … slowly trying to get you.” He then recalled his own childhood in war-torn El Salvador and said Chavez was like “the sound of the bombs going off in the bubbles that we live in.”

Those remarks were “dehumanizing and did not contribute to the jury’s rational consideration of the evidence,” said Justice Rebecca Wiseman in the 3-0 ruling. But she rejected a defense argument that the comments were so prejudicial that they denied Chavez a fair trial. The case against him was so strong, Wiseman said, that he would have been convicted anyway.